The Democrats’ Mutt and Jeff act

The Democratic party’s strategy with respect to President Bush’s judicial nominations is coming into focus. Senate Democrats filibuster a highly quallified nominee, while their supporters, posing as voices of reason, propose an overhaul in the confirmation prcoess as the way out of the mess the Democrats have created. This, at least, is how I read this Washington Post op-ed by Walter Dellinger, a key Clinton Justice Department official. Dellinger says that President Bush should nominate a slate of candidates for judicial vacancies that includes “an appropriate number” of prospective judges selected by, you guessed it, the Senate Democrats. For the District of Columbia appeals court, for example, Dellinger suggests that, in addition to his current highly qualified nominees Miguel Estrada and John Roberts, Bush also nominate Dellinger’s Justice Department crony, Seth Waxman. In that scenario, Dellinger promises, all three would be promptly be confirmed.
There are several problems with Dellinger’s proposal. First, Bush has tried it already. His original nominees for courts of appeals vacancies included a number of moderates. The Senate Democrats responded by confirming all of the moderates and blocking many of the conservatives. Second, the Democrats never offered this sort of slate when they controlled the White House. Indeed, to my knowledge, there is no historical precedent for nominating judges dictated by the party out of power (although presidents used to occasionally nominate someone of their choosing from the opposition party), and certainly none for doing so when the party seeking to dictate does not even control the Senate. The only reason this approach is being floated now is that the Senate Democrats have launched an unprecedented filibuster against a court of appeals nominee whose qualifications are beyond dispute. This aberrant conduct should not be rewarded by making fundamental changes in the way judges are nominated. Emissary Dellinger should be told “no deal.”
Meanwhile, for a sensible look at the Estrada controversy, check out this piece by Washington Post editorial writer Benjamin Wittes. Wittes shows that the Senate confirmed Clinton nominees who gave the same kinds of guarded answers to questions about their judicial philsophy as those that Senate Democrats now use as a pretext for blocking Estrada.